Trucking group calls FMCSA's claim that restart restrictions are justified by cost-benefit analysis a "sham."
The American Trucking Assns. (ATA) filed a brief with the U.S. Court of Appeals for the District of Columbia yesterday in which it claimed FMCSA “distorted” data in order to support its December 2011 final rule on hours of service.
“FMCSA systematically, and without regard for science or logic, distorted the available data in order to fit it to a predetermined and arbitrary outcome,” said Bill Graves, ATA president & CEO. “The brief filed today lays out this case convincingly and we believe the court will come to see the merits of our case and vacate these potentially ruinous changes.”
According to ATA, the rule restricts the ability of drivers to work and drive while adding “tremendous cost” to the economy and added burden on drivers. In addition, the association said the possible safety benefits are minimal.
“From the outset of FMCSA’s review of the hours-of-service rule, ATA has contended that the rules that have been in place since 2004 have been working and have been a major contributing factor in the reduction in truck-involved crashes and fatalities,” said Graves.
The final rule retained the driving-time limit of 11 hours per day and limits a driver’s work week to 70 hours in a seven-day period. Drivers also cannot drive after working 8 hours without first taking a break of at least 30 minutes. That break can be taken at any point within the 8-hour window.
(For more Fleet Owner coverage on hours of service, click here)
One of the most contentious requirements is the mandated two consecutive rest periods from 1 to 5 a.m. as part of the 34-hour restart provision.
“The agency claims that restart restrictions and the off-duty break requirement are justified by the cost-benefit analysis in FMCSA’s Regulatory Impact Analysis. That ‘analysis,’ however, is a sham,” the brief said. “FMCSA stacked the deck in favor of its preferred outcome by basing its cost-benefit calculations on a host of transparently unjustifiable assumptions. FMCSA therefore cannot justify the 2011 final rule on the ground that it has net benefits.”
ATA, the Truckload Carriers Assn., and a host of others including safety advocates, have filed suit over the HOS rule. Truck drivers and trucking companies must comply with the HOS final rule by July 1, 2013.
ATA continues to argue that the FMCSA’s “purported justifications contradict the evidence in the administrative record and require the agency to ignore, without any supporting basis, numerous positions it previously adopted.”
In the initial filing with the suit on Feb. 14, ATA cited a number of problems and questions with the regulation as it is currently written. Among those:
Whether the final rule’s restart provision, which requires that the restart include two periods between 1 a.m. to 5 a.m., should be held unlawful and set aside on the grounds that it is arbitrary and capricious, and contrary to law.
Whether the final rule’s limitation on the use of the restart to once every 168 hours should be held unlawful and set aside on the grounds that it is arbitrary and capricious, and contrary to law.
Whether the final rule’s break requirement should be held unlawful and set aside on the grounds that it is arbitrary and capricious, and contrary to law, because it requires that a mandated 30-minute break exclude all on-duty non-driving activity (if more than 8 consecutive hours have passed since the last off-duty or sleeper-berth period of at least half an hour).
Whether the final rule’s amendment and narrowing of the exemption set forth in 49 C.F.R. § 395.1(e)(2), which, among other things, was not proposed or discussed in the Notice of Proposed Rulemaking and hence was promulgated without proper notice, should be held unlawful and set aside on the grounds that it is arbitrary and capricious, and contrary to law.